Is it legal?
BelleF
12 Posts
Is it legal to require a current employee to have a full physical to determine if they are still capable of doing their job? We have an employee who is having problems with memory, hearing and some episodes with a city-owned vehicle. We would like to have him get a physical to see what the problem may be but are not sure if we can require this legally.
Comments
ADA comes to mind. 2005 29CFR 1630.13 and 1630.14
http://www.access.gpo.gov/nara/cfr/waisidx_07/29cfr1630_07.html
Is there any workers' comp issue here?
1630.14 is pretty clear in paragraph (c) that you can require a medical examination that is job related and consistent with business necessity.
1630.13(b) says that anything that isn't in 1630.14 is unlawful.
This is tricky territory. You can't just tell someone to go get a physical and come back with an explanation for perceived/reported symptoms and a bad driving record. You have to have an examination that is "job related", which a general physical may or may not be, and it has to be "consistent" with "business" "necessity". Lots of quotes. Ask counsel about what you have in mind but, on the face of it, I don't think you can justify a fishing expedition as "job related". Someone who deals with ADA on a daily basis may be able to help you more concretely.
You will see in 1630.14 does allow for job related inquiries. If this person is unable to do some parts of their job, there are things you can ask that may shed light on what you should have examined/evaluated by a health care provider.
[quote user="KMoore1"]I would say treat it as a performance issue if there is an issue. You can address the issue and, depending on what the employee discloses, pursue medical confirmation in the form of certification.[/quote]
This seems to be a situation in which the employee appears for work but has performance issues, reportedly stemming from health problems. FMLA doesn't apply unless there's a request for time off for the diagnosis, treatment, or recovery related to the health problems, assuming they are related to a "serious health condition" under the act.
OP requested information about requesting a physical, which is different from a cert for leave. Also, we don't know if either law applies but we do know that the employee threshold for ADA is significantly lower than it is for FMLA.
I had a similar situation not that many months ago. The EE would come to work and then resist doing certain duties based on a stated inability to perform aspects of the job due to health conditions. This had been an on going problem and was becoming a safety issue for the other EEs. Under the circumstances of the safety related issues both to the EE and others we relieved the EE of duty. The EE was sent to a medical provider with our essential job duties form that is prepared specifically for identifying what the daily expectations are for the EE. The purpose of the visit was not for a general physical rather, it was to determine if the EE was fit for duty according to the essential job duties form. ADA was a consideration all through the process.
My point with the story is that I agree that a general physical would be inappropriate if not an out right violation of HIPA. But you can request a fitness for duty certification if you treat all of the other EE's the same, if there is a safety risk to the EE or others, and if you use only the ability to perform the essential job duties as the basis for the request. Just my two cents worth.
Ah, I wasn't thinking fitness for duty cert in the context that KMoore mentioned it but that may be what he or she intended.
I think it would be helpful at this point to better understand the role this employee is in.
This employee is employed as a police patrolman. We were thinking of a "fitness for duty" physical.
Public safety has their own set of rules regarding "fitness for duty". One other thing to consider is if they are covered under a collective bargaining agreement. The police union could try to challenge you on the need for this physical.
Short answer: I think you can do this.
Long answer:
1630.14(c):
(c) Examination of employees. A covered entity may require a medical
examination (and/or inquiry) of an employee that is job-related and
consistent with business necessity. A covered entity may make inquiries
into the ability of an employee to perform job-related functions.
(1) Information obtained under paragraph (c) of this section
regarding the medical condition or history of any employee shall be
collected and maintained on separate forms and in separate medical files
and be treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;
(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) Government officials investigating compliance with this part
shall be provided relevant information on request.
(2) Information obtained under paragraph (c) of this section
regarding the medical condition or history of any employee shall not be
used for any purpose inconsistent with this part.
It sounds to me like you can make this inquiry. However, you should keep in mind that, although we normally associate the ADA with qualified individuals with disabilties, even unqualified individuals with no disability are covered by the provisions regarding tests. Therefore, an improperly requested medical examination of a mentally and physically sound person can still lead to trouble.
The crux of the matter is that your test request must be "job related" and "consistent" with "business necessity". An exam is generally consistent with business necessity if the exam seeks to diagnose a problem that is seriously effecting business efficiency, is needed to ensure the safety of co-workers or the general public, or is useful in showing that an employee needs (is qualified for) an accomodation. Given that we are talking about a police patrolman with a car crashing problem, I think you can ask that employee to get a medical examination because the employee works in a position in which his or her medical condition could lead to a direct threat to the safety and well being of other employees or the general public. You can request a health examination when an employee's performance has declined over time to rule in or out that the cause of that performance decline is health related, and that situation also applies. If you have a workers' comp employer friendly medical facility around that advertises and is versed in ADA issues, I'd send this person to them.